It’s been two years since the rise of the #MeToo movement. Although it arose elsewhere, spurred by accusations against bicoastal entertainment mogul Harvey Weinstein, it immediately made its mark here in Minnesota.
Within weeks of the Weinstein disclosures, Sen. Al Franken fell prey to it, resigning his seat under extreme pressure, much of it from his Democratic senatorial colleagues for his perceived insensitivities. Shortly afterwards, the Minnesota Legislature adopted a new code for handling internal sex harassment complaints.
But despite a strong push, largely from DFL quarters, to relax the standard for sex harassment claims under the Minnesota Human Rights Act and accompanying judicial decisions, the Legislature declined to change the law.
‘Severe or pervasive’
That recalcitrance, attributable in large part to imploration from the business community to refrain from reform, left the current law intact in Minnesota. At its core is the definition that illegal harassment consists of unwelcome behavior of a sexual nature that is “severe or pervasive.”
It’s this term and the rather restrictive way it generally has been interpreted by the courts that has raised the hackles of many claimants, nearly all of them women, and their advocates. They view the phrase and the treatment frequently accorded it by courts as creating undue hurdles that are often difficult to overcome.
But, for them, help may be on the way.
A case argued a couple of weeks ago before the Minnesota Supreme Court may loosen the restrictions or, conversely, solidify them. The case, entitled Kenneh v. Homeward Bound, is the latest manifestation of the restiveness that has grown out of the 30-plus-year history of sexual harassment law.
The concept was first given legal stature by the U. S. Supreme Court 33 years ago in Vinson v. Meritor Savings Bank, which recognized sexual misbehavior by a bank supervisor against a woman subordinate to be a form of illegal gender-based discrimination. That determination led to the invocation of the “severe or pervasive” standard by the federal courts.
The doctrine evolved into a freestanding tenet of sexual harassment under the anti-discrimination provisions of Title VII of the Federal Civil Rights Act and was emulated by counterpart legislation in most states, including the Minnesota Human Rights Act. Those measures used similar terminology, accompanied by judicial rulings here and in numerous other jurisdictions adopting the comparable constrictive court constructions.
The “severe or pervasive” rubric was complemented in 1993 by another phrase, rolled out by the High Court in Harris v. Forklift Systems: the “reasonable person.” The term called for judges and jurors to determine if the alleged wrongdoing would be offensive to a hypothetical individual of “reasonable” sensibilities.
But the “reasonable” standard was plagued with problems. It did not differentiate between genders, obfuscating whether it ought to be viewed through the prism of a hypothetical woman, man, or gender-neutral asexual individual.
Further, the term tended to become frozen in time, as courts looked to past cases, sometimes years ago, to ascertain the impropriety of contemporary conduct. By failing to take into account that the acceptability of particular behavior changes with time and evolving social mores, the use of the concept tended to dilute claims.
But, above all, the “reasonable” standard was generally subject to determinations by judges, which disproportionately resulted in restrictive rulings dismissing claims that particular jurists did not feel met the high judicially created threshold. As a result, numerous cases were not submitted to juries but were decided by fiats by judges not as sensitive to the realities of what may or may not be acceptable in the workplace.
This pattern conflicted with the general rule that allows juries composed of peers of claimants to pass upon the issue of “reasonable” behavior. As a result, claimants were usually left at a significant disadvantage in adjudication before generally more employer-hospitable jurists.
Under these “severe,” “pervasive,” and “reasonable” phrases, the courts imposed high obstacles on cases brought by employees, mainly women, which frequently faltered. In the absence of extreme misbehavior, usually involving multiple occasions of graphic sexuality or physicality, the courts repeatedly threw the cases out for want of sufficient severity or pervasiveness, sometimes bordering on perversity. Although there were, to be sure, a number of outliers, as a general rule, the women claimants have been unsuccessful.
Into this vortex, along comes the Kenneh case, the proceeding now pending before the Minnesota Supreme Court, which seeks to expand the contours of the concept.
The case was brought three years ago by a woman assistant program coordinator at Homeward Bound, the well-known organization that provides in-home care assistance to people with disabilities. She claimed that a male janitor at the Plymouth-based facility repeatedly made unwelcome sexual overtures while “talking sex” with her, discussed oral sex, called her “beautiful” and “sexy,” and may even have followed her outside the workplace.
After she resigned, she sued the nonprofit organization for sexual harassment in Hennepin County District Court. Following extensive pre-trial proceedings, the case never made it to trial. A now-retired male judge threw the lawsuit out on grounds that the allegations, even if true, did not satisfy the “severe or pervasive” requirement.
The decision was appealed to the intermediate level state court of appeals, where the claimant made two principal arguments: 1) that the court should abandon the strict “severe or pervasive” standard and replace it with a less rigorous one allowing jurors to pass upon the propriety of the claim, or 2) urging the court to hold that the alleged conduct met the existing threshold. But a three-judge panel rejected those entreaties and affirmed the lower court ruling.
The claimant then requested review by the state Supreme Court, a seven-member tribunal that, in exercise of its discretion, only hears about 15% of the approximately 700 cases annually appealed to it.
But this one made it through. The jurists in St. Paul heard the case in mid-November, and a decision is expected sometime early in 2020.
The court’s options
The court has several options. It could uphold the lower court rulings, leaving in place the dismissal of the lawsuit, along with the established legal jargon. At the other extreme, it could dispense with the “severe or pervasive” tenet and construct a new, less onerous one that favors this claimant and others like her, the goal she shares with a number of the workplace equity advocacy groups that support her case in opposition to business-oriented organizations lined up on the other side of the litigation.
But another possibility exists: The justices could maintain the existing rubric while ruling that the claimed conduct here, if proven, falls within it and send the case back for determination by a Hennepin County jury of Homeward Bound’s responsibility and the amount of money damages, if any, the claimant should recover. That outcome may be the most appealing to jurists inclined to exercise Solomonic justice of slicing the proverbial baby in half, giving each side something acceptable but leaving both feeling unfulfilled.
Notwithstanding these legal paradigms, the outcome could be influenced by other factors. Some observers surmise that it bodes well for the claimant that the justices even deigned to take up the case, coming off of dual losses in the lower courts. But that may be misleading since the jurists actually uphold about half of the lower court rulings they review.
Ideology, a euphemism for the judicially adverse term “politics,” also could be a consideration. Both sides are keenly aware that five of the seven jurists on the tribunal were appointed by former DFL Gov. Mark Dayton.
The litigants also recognize another potentially determinative factor: Four of the jurists are women, three of them Dayton appointees, along with Chief Justice Lori Gildea, who was placed there by ex-Republican Gov. Tim Pawlenty.
But politics and gender may be muted in this case. The Hennepin County trial judge who initially tossed out the lawsuit, an appointee of the Dayton-Pawlenty third party predecessor, Jesse Ventura, is highly regarded as a thoughtful jurist with progressive tendencies.
As for the trio of judges on the Court of Appeals who upheld his decision dismissing the case, setting the stage for the upcoming Supreme Court decision: They were all women.
Marshall H. Tanick is a Twin Cities constitutional and employment law attorney and historian.
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